CAAF will hear oral argument in the Air Force case of United States v. Jones, No. 14-0057/AF (CAAFlog case page) on Wednesday, November 19, 2014. In the wake of last term’s blockbuster decision in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), CAAF will revisit the impact of the appointment of one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate) to the Air Force Court of Criminal Appeals. In Janssen, CAAF found Mr. Soybel’s appointment to be invalid after concluding that Congress did not give the Secretary of Defense or the Judge Advocate General the authority to appoint a civilian as an appellate military judge.

Writing for the court in Janssen, Judge Stucky considered the possibility of saving the CCA’s action in the case by application of the de facto officer doctrine. That doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Ryder v. United States, 515 U.S. 177, 180 (1995) (citing Norton v. Shelby County, 118 U.S. 425, 440 (1886)). But under the facts of Janssen, where the appellant challenged Judge Soybel’s appointment as soon as he learned of it, CAAF declined to apply the doctrine, noting that the Supreme Court also declined to apply the doctrine in Ryder because it “would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.” Janssen, slip op. at 13-14 (quoting Ryder, 515 U.S. at 183).

However, in Jones the appellant lodged practically no objections. After Second Lieutenant Jones was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of drunken operation of a motor vehicle, assault consummated by a battery, and conduct unbecoming, in violation of Articles 111, 128, and 133, and was sentenced to confinement for six months, total forfeitures, and a dismissal, his case was docketed at the Air Force CCA. Mr. Soybel was then appointed to the CCA by the Judge Advocate General of the Air Force, and Mr. Soybel was part of a three-judge panel of the CCA that affirmed the findings and sentence in Jones. But the CCA reconsidered the case after the Secretary of Defense made a second appointment of Mr. Soybel to the court. Mr. Soybel also participated in the reconsideration, and again the CCA affirmed the findings and sentence. Appellant asserted a number of errors during the CCA’s reviews, but he did not challenge the legality of Mr. Soybel’s appointment to the court.

Appellant eventually raised the issue of Mr. Soybel’s appointment – for the first time – at CAAF. CAAF granted review of Jones as a trailer case to Janssen, and then CAAF decided Janssen. Yet rather than remand Jones for a new review consistent with Janssen, CAAF did something very different. On June 27, 2014, (over two months after deciding Janssen) CAAF issued the following order:

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028. Upon further consideration of the granted issue, 73 M.J. 138 (C.A.A.F. Dec. 23, 2013), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE DE FACTO OFFICER DOCTRINE CONFERRED VALIDITY UPON JUDGE SOYBEL’S PARTICIPATION IN THE AIR FORCE COURT OF CRIMINAL APPEALS’ DECISION IN APPELLANT’S CASE.  SEE RYDER v. UNITED STATES, 515 U.S. 177, 182-84 (1995); NGUYEN v. UNITED STATES, 539 U.S. 69, 72-73 (2003); UNITED STATES v. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685 (1960); AYSHIRE COLLIERIES CORP. v. UNITED STATES, 331 U.S. 132 (1947); NORTON v. SHELBY COUNTY, 118 U.S. 425, 446 (1886); UNITED STATES v. JANSSEN, 73 M.J. 221 (C.A.A.F. 2014); UNITED STATES v. ELLIOTT, 15 M.J. 347 (C.M.A. 1983).

Briefs will be filed under Rule 25.

In plain English, CAAF is considering whether it should affirm the Air Force court’s decision in Jones despite the fact that Mr. Soybel improperly participated in that decision.

Appellant’s position is relatively straightforward:

This Court should not apply the de facto officer doctrine because Mr. Soybel’s appointment to the Air Force Court did not involve merely a technical defect in the appointment. Rather, his appointment was defective because it involved the Secretary of Defense usurping the appointment power of Congress and the President of the United States, in violation of the Appointments Clause of the United States Constitution. Constitutional violations of this magnitude create jurisdictional error that the Supreme Court will not cure with the de facto officer doctrine.

App. Br. at 4. Appellant’s brief relies rather heavily on an interpretation of the Supreme Court’s decision in Nguyen v. United States, 539 U.S. 69 (2003), asserting that Nguyen “offers almost a carbon copy factual scenario to Appellant’s case . . .” App. Br. at 7. Nguyen (and a companion case) involved the participation of territorial (Article IV) judges in a panel of the Ninth Circuit that reviewed a decision from the District Court for the Northern Mariana Island; a curious fact pattern worthy of some illustration:

The highly unusual presence of a non-Article III judge as a member of the Ninth Circuit panel occurred during special sittings in Guam and the Northern Mariana Islands. When the Court of Appeals heard arguments in Guam, the Chief Judge of the Ninth Circuit invited the Chief Judge of the District Court for the Northern Mariana Islands to participate. A judge of the District Court of Guam was similarly invited to participate in appeals heard while the Ninth Circuit sat in the Northern Mariana Islands.

The panel affirmed petitioners’ convictions without dissent. 284 F.3d 1086 (2002). Neither Nguyen nor Phan objected to the composition of the panel before the cases were submitted for decision; neither petitioner sought rehearing after the Court of Appeals rendered judgment to challenge the panel’s authority to decide their appeals. Each did, however, file a petition for certiorari raising the question whether the judgment of the Court of Appeals is invalid because of the participation of a non-Article III judge on the panel. In accordance with this Court’s Rule 10(a), we granted the writ, 537 U. S. 999 (2002), to determine whether the Court of Appeals had “so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s supervisory powers.” Pet. for Cert. in No. 01-10873, p. 6; Pet. for Cert. in No. 02-5034, p. 5. For the following reasons, we find these to be appropriate cases for the exercise of that power.

Nguyen, 539 U.S. at 73-74. Appellant’s argument does not assert that CAAF should exercise supervisory power over the operation of the Air Force CCA in the manner sought by the petitioners in Nguyen, perhaps recognizing that CAAF lacks such broad authority. See Clinton v. Goldsmith, 526 U.S. 529, 536 (1999) (“[T]he CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed.”). Rather, Appellant’s argument is that the circumstances of Mr. Soybel’s participation in the decisions of the Air Force court are substantively the same as the circumstances of the participation of the non-Article III judges in the decisions of the Ninth Circuit:

[In Nguyen t]he Supreme Court refused to find waiver, refused to apply the de facto doctrine, and suggested that doing either under these circumstances would be improper. [539 U.S.] at 81. The Court said, “[w]hatever the force of the de facto officer doctrine in other circumstances, an examination of our precedents concerning alleged irregularities in the assignment of judges does not compel us to apply it in these cases.” Id. at 77. The Court explained that application of the de facto officer doctrine was inappropriate because it would “incorrectly suggest that some action (or inaction) on petitioners’ part could create authority Congress has quite carefully withheld.” Id. at 80-81. The Court drove home the point by saying “[e]ven if the parties had expressly stipulated to the participation of a non-Article III judge in the consideration of their appeals, no matter how distinguished and well qualified the judge might be, such a stipulation would not have cured the plain defect in the composition of the panel.” Id. This rationale is very similar to early Supreme Court precedent from 1886, rejecting application of the de facto doctrine, where the Court said:

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.

Norton v. Shelby County, 118 U.S. 425, 441-42 (1886).

App. Br. at 8-9 (emphasis in original).

The Government’s answer focuses on Appellant’s failure to raise this issue at an earlier stage:

Appellant should not be rewarded for failing to raise a commonly recognized issue and then be permitted to complain about it to a higher appellate court at time he sees fit. Acceptance of untimely complaints runs contrary to the spirit of the de facto officer doctrine and invites appellate gamesmanship. Therefore, Appellant’s belated request for relief before this Honorable Court represents an untimely request for relief that permits application of the de facto officer doctrine to AFCCA’s decision in Appellant’s case.

Gov’t Br. at 7-8. But the Government also highlights an important distinction between direct and collateral attacks on an appointment:

“Prompt” challenges conferred upon a proper forum are particularly important because the de facto officer doctrine distinguishes between collateral attacks (challenges that an official is “improperly in office”) and direct attacks (challenges that an officer lacks sufficient qualifications). Horwitz v. State Bd. of Medical Examiners of State of Colo., 822 F.2d 1508, 1516 (10th Cir. 1987).

Gov’t Br. at 7. A footnote adds:

This case would represent a collateral attack because Appellant’s arguments pertain to the manner in which Judge Soybel was appointed and not upon Judge Soybel’s qualifications for which he is eminently qualified, especially given his prior active duty service as a military appellate judge on the same court. (See J.A. at 2-7.)

Gov’t Br. at 7 n.4. The Government’s brief also distinguishes this case from Nguyen:

This case is markedly different from Nguyen. First, this case does not represent the need for this Court’s exercise of “supervisory powers” because Nguyen is not an Appointments Clause case but instead involved the misapplication of statutory law by the lower appellate court in how it conducts its appellate business. Id. at 80-81. Second, as detailed above, Nguyen dealt with the qualifications of the non-Article III judge (direct attack) rather than constitutionality of the judge’s appointment to his position as judge (collateral attack). In this regard, Nguyen does not represent any deviation from the de facto officer doctrine but instead reinforces the rationale that direct attacks are permissible issues for review because they involve jurisdictional issues for which the de facto officer doctrine would not apply.

Gov’t Br. at 9. The Government’s brief clearly hopes that CAAF will focus on Appellant’s failure to challenge Mr. Soybel’s appointment at an earlier stage of the appellate proceedings, rather than on the appointment itself. To this end, I think it notable that the Supreme Court’s decision in Nguyen was 5-4, with a dissent authored by Chief Justice Rehnquist that would have affirmed the Ninth Circuit despite the improper participation of a non-Article III judge. The dissenters in Nguyen found the issue forfeited by the failure to object, and undeserving of plain error relief “because even assuming that the error affected petitioners’ substantial rights, it simply did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.” 539 U.S. at 84 (Rehnquist, C.J. dissenting). There is no claim of prejudice raised in Appellant’s brief to CAAF. Rather, while analogizing his case to Nguyen, Appellant claims that “prejudice is irrelevant.” App. Br. at 10. I think it very likely that at least a few judges at CAAF – if not a majority – might see the fractured decision in Nguyen and its not-perfectly-analogous facts as an opening to apply plain error review in this case.

However, I can’t help but marvel at the deep well of patience that CAAF has had for the Air Force military justice system. While the court is not charged with general supervision of military justice, the Air Force has avoided any significant criticism in CAAF’s resolution of the problems at the Air Force CCA (our #9 military justice story of 2013). CAAF’s decision in Janssen focused on the actions of higher authority (the Secretary of Defense), and its decision on the delay issue in United States v. Merritt, 72 M.J. 483 (C.A.A.F. Dec. 5, 2013) (CAAFlog case page), gave the Air Force little more than a tap on the wrist (merely noting that “the trend of delay at the Air Force CCA is troublesome . . .” Merritt, 72 M.J. at 492, slip op. at 23).

Perhaps that well has run dry. CAAF is not only revisiting the appointment of Mr. Soybel in this case, it is also revisiting the issue of delay at the Air Force court in United States v. Gutierrez, No. 13-0522/AF (grant discussed here). The court may be ready to address why a service as large as the Air Force seems to have so much trouble ensuring appellate due process for its members.

Case Links:
AFCCA opinion
AFCCA opinion on reconsideration
Blog post: Here come the trailers
Blog post: CAAF to re-examine the Soybel appointment
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

3 Responses to “Argument Preview: United States v. Jones, No. 14-0057/AF”

  1. RKincaid3 (RK3PO) says:

    After reviewing Ryder v. U.S., Buckley v. Valeo and Norton v. Shelby County, it seems to me that the decisions of those holding invalid appointments (like Judge Soybel) cannot survive for the simple reason that:

     
    “The [constitution’s appointment’s] Clause is a bulwark against one branch aggrandizing its power at the expense of another branch, but it is more: it “preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power.””  Buckley.

     
    It should be kept in mind that the foregoing quote does not operate in a vacuum.  There is also the consideration that:

     
    “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.Ryder, citing to Norton.
     

    Since the Janssen decision was published on 15 April 14, the SCOTUS issued a major appointment’s clause case, NLRB v. Noel Canning issued on 26 June 14.  Most telling of the Noel Canning decision is that the words “de facto,” much less “de facto officer doctrine” appear NOWHERE in it.  This 9-0 decision was a masterpiece of splitting the judicial baby as it ruled for the Obama Administration’s virtually unlimited recess appointment authority when the Senate is in recess while also ruling that the Senate has virtually unlimited authority to say when it is in recess—and for how long—as well as for determining for itself whether it is formal or informal.  The result: a judicial decision which—rather than resolve anything to either party’s satisfaction—really solidified the natural tensions inherent in conflicting Art I and Art II authority.  Thus, the court ruled that the hundreds of NLRB decisions actually ruled upon by the three improperly appointed board members were invalid and had no legal effect.  Talk about upsetting the apple cart…  As SCOTUSblog’s Amy Howe noted earlier this year:
     

    “So what exactly does all of this mean, going forward?  First and foremost, it means that the three recess appointments directly involved in this case – to the NLRB – are invalid.  That in turn means that any decisions in which those three NLRB commissioners participated while they were recess appointees are invalid.  But nothing in the Court’s ruling suggests that it would invalidate other, earlier recess appointments.  To the contrary, the Court made clear that, over two centuries, presidents had made only a very small handful of recess appointments during recesses that were shorter than ten days.  And later on, it contrasted its approach with that of Justice Scalia – whose approach, it contended, ‘would render illegitimate thousands of recess appointments reaching all the way back to the founding era.’”

     
     
    Additionally, consider, too, that the Judge Stuckey noted in U.S. v. Janssen that the defect at issue over Judge Soybel’s appointment could have been avoided if the Air Force had simply recalled him to active duty.  So, in order to save money and paperwork, the Air Force cut corners and “appointed” him as a civilian to do illegally what he could have done legally as a service member had he been properly appointed—without the “advice and consent of the senate.”  This case reminds me of the 2013 SCOTUS case, Missouri v. McNeely, wherein a fractured court determined that a police officer’s jumping to the conclusion that an exigency is present and thus failing to at least attempt (by making a phone call) to get a warrant without developing the record to support their conclusion as to the exigency is a constitutional violation.  Consider too, the SCOTUS’s 9-0 decision in the Riley/Wurie cell phone privacy cases, wherein it ruled that warrant’s still apply despite modern technology absent a legitimate exigency).  In Jansson (and now Jones), McNeely and Riley/Wurie, government tried to cut corners in what are really pretty straight forward limits upon government power—and the court has rightly refused to ratify such unprincipled and recklessness attempts by government to empower itself beyond its necessary constraints.  And the courts should also disabuse government from future attempts to exploit and benefit from experiments at pushing the legal limits of its authority.
     
    The outcome, then, of Jones, likely seems to be pre-determined by Judge Stuckey’s holding in Janssen now seems even more obvious:
     

    “The conclusion is clear: While Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint appellate military judges, it has not done so. This being the case, the appointment of Judge Soybel was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers. See Edmond, 520 U.S. at 660. Since this was not done, his appointment as an appellate military judge is invalid and of no effect.”
     

    Absent the existence of other, contrary authority (besides Presidential authority) not noticed or relied upon by Judge Stuckey, and in light of past (and more recent) cases discussed hereinabove, it seems to me that Judge Soybel’s participation in issuing judicial decisions (official acts) without being first properly appointed to the office responsible for executing those official acts, is (and should be) permanently fatal to the government action against Jones and the others whose cases are so affected.
     
    And considering that the government (the Air Force and SECDEF—members of the executive branch) elected to cut corners (by improperly appointing Judge Soybel as a civilian without the advice and consent of the senate vice recalling him to active duty which authority has already been delegated by the Congress to the President, but not his staff), and given the SCOTUS’s recent refusal to countenance governmental end-runs around basic procedural (and constitutional) diligence and its own legal (and constitutional) limitations, application of the de facto officer doctrine (if it even exists anymore post Noel Canning) seems yet again to be another unreasonable attempt to save government from itself via an exception that swallows yet another rule that limits and balances government power.  Government’s failure to pursue perpetrators legally within its authority should not be rewarded by multiple attempts to get it right—especially in dealing with ordinary issues that are neither complicated nor unique nor rare—such as executive appointments.
     
    And until government learns that its misconduct vis a vis the citizenry has harsh and permanent consequences, it will not learn from the continuous slew of proffered exceptions—statutory or judicial—that effectively forgive, protect and in fact embolden government power and authority over the people.

  2. Vic Ferrari says:

    What I’ve never heard from this Soybel debacle at AFCCA is this: a behind-the-scenes story on how this actually came to be.  Who’s brilliant idea was it to cure the backlog at AFCCA by sticking a civilian former JAG on the court?  How did this get through TJAG’s office?  How did this get through DoD GC’s office? 

  3. RKincaid3 (RK3PO) says:

    How it got by the AFTJAG is pretty simple, per Zacks numerous CAAFlog observations: the AFTJAGs standard practice is to scrutinize with a fine-toothed legal comb and immediately challenge any trial court rulings favorable to the defense.  Accordingly, it doesn’t shock to find the opposite is true when it comes to AFTJAGs taking courses of action that favor government shortcuts–or Secretarial level attempts to cure AFTJAGs defective appointments.  
     
    Arguably, the common thread connecting AFTJAGs appellate actions and shortcut appointment procedures is that the someone appears bound and determined to be the sword of Congress’s war on the (already minimal) due process protections presently available under the UCMJ politically disguised as a “war on sex assault.”  It is arguably nothing less than congressional UCI manifested once again, not unlike what we observed as infecting the Sinclair trial.
     
    Sadly, it may also reflect that a whole lot of lawyers–both military and civilian–in significant positions of advisory authority were too busy telling their clients what they want to hear vice telling them what they needed to hear.  I mean, how else does one explain appointing a civilian judge sans presidential nomination and senate advice/consent instead of simply recalling the individual to be a military judge pursuant to existing authority?  The only explanation is that someone in power wanted a shortcut to a particular result and someone charged with finding that shortcut tried way too hard to get to “yes” instead of being the honest broker and uttering the dreaded words “no, that won’t work” and here is why.
     
    Commanders/leaders have tough jobs, but sometimes the toughest jobs belong to the lawyers who have to advise that commander/leader that they are about to step on a landmine when that commander/leader has made it clear that they won’t let anything–or anyone–get in their way.
     
    But I have been wrong before and will be wrong again, inevitably.